United States v. Keithley Johnson, M.D., Cross-Appellee
71 F.3d 539, 43 Fed. R. Serv. 854, 1995 U.S. App. LEXIS 35524 (1995)
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Rule of Law:
Under the U.S. Sentencing Guidelines, a physician who uses their professional license to unlawfully distribute controlled substances is subject to a two-level sentencing enhancement for use of a "special skill" because the base offense level for drug distribution is determined by drug quantity alone and does not already account for the offender's professional status.
Facts:
- Dr. Keithley Johnson and his medical partner, Dr. Tejinder Uppal, operated the Neighborhood Health Clinic.
- Johnson prescribed controlled substances to individuals, including an undercover police officer, upon request and without conducting proper medical examinations.
- On some occasions, Johnson exchanged prescriptions for construction work on his personal property.
- Dr. Uppal treated her own medical conditions, a service for which her insurer, Electronic Data Systems (EDS), did not provide reimbursement.
- To obtain payment from EDS, invoices were submitted through the mail that falsely represented Dr. Johnson as the treating physician for Dr. Uppal.
- Johnson knowingly signed and initialed these fraudulent insurance forms.
- Relying on these false submissions, EDS paid the claims for Dr. Uppal's self-treatment.
Procedural Posture:
- Dr. Keithley Johnson was indicted in the U.S. District Court on 58 counts.
- A jury found Johnson guilty of nine counts of illegal distribution of controlled substances and four counts of mail fraud.
- During sentencing, the District Court (the trial court) rejected the government's request to apply a two-level sentencing enhancement for use of a 'special skill' under USSG § 3B1.3.
- The District Court granted a downward departure based on Johnson's medical problems and sentenced him to twelve months in a community treatment center.
- Johnson, as defendant-appellant, appealed his convictions to the U.S. Court of Appeals for the Sixth Circuit, claiming insufficient evidence and improper admission of hearsay evidence.
- The government, as cross-appellant, appealed Johnson's sentence to the U.S. Court of Appeals for the Sixth Circuit, challenging the court's decisions on the special skill enhancement and the downward departure.
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Issue:
Does a physician's use of their medical license to illegally distribute controlled substances constitute the use of a 'special skill' under USSG § 3B1.3, warranting a sentencing enhancement, when the base offense level is calculated solely on the quantity of drugs distributed?
Opinions:
Majority - Kennedy, Circuit Judge
Yes. A physician's use of their license to facilitate a drug distribution crime warrants a sentencing enhancement for use of a special skill. The court reasoned that USSG § 3B1.3 directs courts to apply the enhancement if the abuse of skill is not already 'included in the base offense level or specific offense characteristic.' Johnson was sentenced under § 2D1.1, where the base offense level is dictated solely by the quantity of drugs, without regard to the offender's profession or skills. The crime of illegal distribution under 21 U.S.C. § 841(a)(1) can be committed by anyone; physicians are simply exempt when they act legitimately within their professional practice. Therefore, since the base offense level does not account for the defendant's use of a medical license—a special skill not possessed by the general public—the two-level enhancement under § 3B1.3 should have been applied.
Analysis:
This decision clarifies the application of the 'special skill' sentencing enhancement, establishing that the key inquiry is whether the skill is already factored into the base offense level calculation, not whether the skill is merely related to the crime itself. It prevents defendants from successfully arguing that their professional status is intrinsic to the offense and thus shouldn't be a basis for enhancement, unless the sentencing guideline for that offense explicitly incorporates professional status. This ruling strengthens the government's ability to seek harsher sentences for professionals, like doctors or lawyers, who abuse the public trust associated with their licenses to commit crimes.
